ROCKEFELLER ET AL.
TAYLOR, SUPERVISOR, ET AL.
Appeal from special term, Westchester county.
Bill by William Rockefeller and another, in behalf of taxpayers, against Moses W. Taylor, as supervisor of the town of Mt. Pleasant, and others. From a judgment dismissing the complaint (59 N.Y.S. 1038) pursuant to a decision rendered on the trial of the issues before the court, plaintiffs appeal. Reversed.
[74 N.Y.S. 813] Charles F. Brown, for appellants.
Daniel P. Hays, for respondent Synnott.
H. C. Henderson, for respondent Millard.
Henry C. Griffin, for town board.
Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.
This is an action brought by taxpayers, pursuant to the provisions of section 1925 of the Code of Civil Procedure [74 N.Y.S. 814] and section 1 of chapter 301 of the Laws of 1892, to enjoin the payment of certain bills for expenses incurred by the assessors of the town of Mt. Pleasant, Westchester county, in defending certiorari proceedings theretofore instituted by the plaintiffs separably to review the assessed valuation of lands owned by them in said town for the years 1896, 1897, and 1898, respectively. There was no vote of the electors of the town, or resolution or other action on the part of the town board, authorizing the assessors to defend the certiorari proceedings. The bills, other than that of the respondent Synnott,
were presented to the board of town auditors and audited on the 23d day of
December, 1898, after the termination of the litigation, with full knowledge on
the part of the members of said board of all the material facts hereinafter
stated, and of the contents of the decision and final order of the court made
in the certiorari proceeding, and without further evidence than the mere
presentation of the bills. This action was commenced on the 31st day of
December, 1898, and the complaint was served with the summons. Subsequently,
and on the 9th day of January, 1899, the town board, by resolution
reciting the commencement and purpose of this action, attempted to ratify
the action of the assessors in defending said certiorari proceedings and in
incurring such expenses. The complaint charges that the bills were " illegal,
unjust, and inequitable claims," and were " wrongfully, collusively and
illegally" audited by the members of the board of town audit, each of whom, it
alleges, has " connived at the paying of said authorized, illegal, unjust, and
inequitable claims." The charge of collusion was eliminated from the complaint
upon the trial, but the plaintiffs did not abandon their other allegations of
fact tending to show bad faith tantamount to fraud on the part of the members
of the board in thus auditing these bills.
The town law (section 180, c. 569, of the Laws of 1890, as amended by chapter 227 of the Laws of 1897) limits town charges to the following items:
" (1) The compensation of town officers for services rendered for
their respective towns. (2) The contingent expenses necessarily incurred for
the use and benefit of the town. (3) The moneys authorized to be raised by
the vote of a town meeting for any town purpose. (4) Every sum directed to be
raised by law for any town purpose. (5) All judgments duly recovered against
a town. (6) All damages recovered against a town officer for any act done
pursuant to a direction or resolution, duly adopted by the town board, or at
a town meeting duly held; and all damages against any such officer for any
act done in good faith, in his official capacity, without any such direction
or resolution, may be made a town charge, by a vote of the town, at a town
meeting duly held. (17) The costs and expenses, lawfully incurred by any town
officer in prosecuting or defending any action or proceeding brought by or
against the town or such officer for an official act done, shall be a town
charge in all cases where the officer is required by law to so prosecute or
defend, or do such act, or is instructed to so prosecute or defend, or do
such act, by ...